APPLICANT REQUESTS:  That he be returned to the active reserve and promoted to the rank of colonel.

APPLICANT STATES:  That he voluntarily retired from the USAR and should not have been considered for promotion by the 1994 colonel selection board; however, he was considered and selected for promotion.  He contends that since the Army saw fit to promote him, he would like the opportunity to accept the promotion and serve as a colonel.

EVIDENCE OF RECORD:  The applicant’s military records show:

That on 17 May 1994 he voluntarily retired from the active USAR as a lieutenant colonel.  At the time of retirement, he had completed over 20 years of service for retirement purposed but had not reached age 60 (DOB 1 September 1942) and had not reached his mandatory removal date as a lieutenant colonel which was 31 August 1995.  He had previously been nonselected for promotion to colonel by the 1992 and the 1993 colonel reserve selection boards.  The reasons for his nonselection are not known.  

Following his application for retirement, his name and records should have been removed from consideration by a promotion board.  For reasons unknown, this was not done and he was selected by the colonel selection board that convened in July 1994.

The record shows that upon selection for promotion his promotion eligibility date was established as 19 August 1994.  The promotion, announced by US Total Army Personnel Command Memorandum dated 14 October 1994, was subject to senate confirmation and required that he be in an active status in order to accept it.

Army Regulation 135-155, Promotion of Commissioned Officers and Warrant Officers other Than General Officers, provides in pertinent part, that an officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list.  Removal will not be considered a nonselection.  If returned to an active status, the officer’s name will not be placed on a promotion list unless again recommended by a selection board.  The officer will not be considered for a reserve of the Army promotion until at least 1 year after the date of return to an active status.

HQDA will remove the name of an officer from a selection list who was ineligible for selection because he or she was removed from an active status before promotion was finalized or was in an active status in error at the time of consideration.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Although the applicant had voluntarily retired on 17 May 1994, his records were incorrectly placed before a USAR colonel selection board which met in July 1994 and he was selected for promotion.

2.  The promotion regulation clearly indicates that his record should not have been considered by the selection board since he was not in an active status at the time and, therefore, not eligible for either consideration or promotion.  His ineligibility to accept the promotion, while having the potential for great impact on him personally, was a harmless error that created no injustice to the individual.

3.  The applicant’s retirement was tendered in good faith and accepted likewise.  There is no basis for this Board to abrogate that retirement, restore him to an active status and direct a retroactive promotion.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence  of probable error or injustice.

BOARD VOTE:  

                       GRANT

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		    Karl F. Schneider
		    Acting Director